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United States v. Merle R. Whitaker, 722 F.2d 1533, 11th Cir. (1984)
United States v. Merle R. Whitaker, 722 F.2d 1533, 11th Cir. (1984)
2d 1533
Merle R. Whitaker was convicted of conspiracy to commit wire fraud and six
counts of filing fraudulent reports by wire. He was sentenced to one year on
each count to run concurrently and fined $1,000. The judgment was entered on
the docket on February 23, 1982. Whitaker filed his notice of appeal on March
10, 1982.
Rule 4(b) does authorize an extension of time for thirty days upon a showing to
the district court that the failure to file resulted from excusable neglect. In
criminal cases, this Court has customarily treated a late notice of appeal, filed
within thirty days during which an extension is permissible, as a motion for
extension of time. See United States v. Ward, 696 F.2d 1315 (11th Cir.), cert.
denied, --- U.S. ----, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983).
We have held sufficient a letter written to the district court expressing an intent
to appeal and requesting the appointment of an attorney. United States v. Ward,
696 F.2d at 1318. An "Appeal Bond" signed by defendant and approved by the
judge has been accepted as a notice of appeal. O'Neal v. United States, 272
F.2d 412 (5th Cir.1959). Enumerating a list of actions which we have
considered to be a sufficient notice of appeal, we have held that courts of appeal
clearly have discretion to disregard irregularities in the form or procedure for
filing a notice of appeal. Cobb v. Lewis, 488 F.2d 41 (5th Cir.1974). Deciding
a case on other grounds, the Supreme Court has held it did not need to consider
whether a motion for bail "may do unintended service as a notice of appeal."
Collier v. United States, 384 U.S. 59, 62, 86 S.Ct. 1253, 1254, 16 L.Ed.2d 353
(1966). Exercising the discretion reposed in the court, we hold that on the facts
of this case the written motion for release pending appeal satisfies the notice of
appeal requirements of Rule 4(b), and that we have jurisdiction of this case.
As to the merits, Whitaker claims a violation of his right to a speedy trial under
18 U.S.C.A. Sec. 3161 et seq., when his case was called with two others for
jury selection on the seventieth day after his indictment. That was on January 4.
The jury then selected was sworn on January 6 and the trial was concluded on
January 7.
Gonzalez recognizes that the Act may not be evaded by commencing voir dire
within the prescribed time limits and then taking a prolonged recess before the
jury is sworn and testimony begun. There was no prolonged recess here but
only a two-day interval until the jury was sworn with testimony beginning on
the third day.
AFFIRMED.